RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: FEBRUARY 12, 2004
         DOCKET NUMBER: AR2003090062


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Robert J. Osborn		Member
Mr. Lester Echols		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that the narrative reason for his separation be changed and that his general discharge, under honorable conditions, be upgraded to honorable.

2. The applicant states that Item 28 (Narrative Reason for Separation), of his DD Form 214, Certificate of Release or Discharge from Active Duty, is not true. He states that he completed his Regular Army training and the training he was given at the US Army Retraining Brigade, Fort Riley, Kansas. When asked if he were going to make the Army a career, he said, no. He adds that the Army told him that a general discharge, under honorable conditions, was the same as an honorable discharge. Finally, he states that he needs his discharge upgraded so that he can qualify for a grant so that he can attend truck-driving school.

3. The applicant provided a copy of his DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error, which occurred on 23 July 1982. The application submitted in this case is dated 22 April 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted in the US Army Reserve on 26 March 1981. On 4 May 1981, the applicant enlisted in the Regular Army for a period of 3 years. He successfully completed basic combat training at Fort Knox, Kentucky, and his advanced individual training at Fort Hood, Texas. On completion of his advanced training, he was awarded the military occupational specialty 19F,
M48-M60A1/A3 Armor Crewman.

4. The applicant was advanced to the rank and pay grade, Private, E-2 on 1 October 1981. This is the highest pay grade that the applicant held while he served in the Army.

5. The applicant was awarded the Army Achievement Medal for meritorious achievement for the period 21 August through 31 August 1981.

6. On 25 February 1982, court-martial charges were brought against the applicant.

7. On 29 April 1982, the applicant was found guilty, by a special court-martial, which was convened at Fort Hood, Texas, of wrongfully appropriating a twelve-inch and a sixteen-inch pizza and a plastic carrying bag, the property of Domino's Pizza. He was sentenced to be reduced to the pay grade, E-1, to be confined at hard labor for 60 days, and to forfeit $367.00 pay per month for 3 months.

8. On 29 April 1982, the applicant was confined at the Installation Detention Facility, to serve his sentence to confinement at hard labor. On 12 May 1982, he was transferred to the 5th Unit, 3rd Battalion, US Army Retraining Brigade, Fort Riley, Kansas. On 28 May 1982, he was further transferred to the 1st Unit, 1st Battalion, US Army Retraining Brigade.

9. On 24 June 1982, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for participating in a breach of peace, by wrongfully striking another person in the face, with a closed fist, on 18 June 1982. The imposed punishment was a forfeiture of $75.00 pay per month for one month ($25.00 of the forfeiture was suspended for 60 days); 7 days extra duty, not to exceed 2 hours per day; and restriction to the company area for 7 days.

10. On 29 June 1982, the applicant’s unit commander initiated action to separate him from the Army, under the provisions of Army Regulation (AR) 635-200, paragraph 14-33, for misconduct – frequent incidents of discreditable nature with civil or military authorities. On the same date, he was notified that discharge proceedings had been initiated against him and he was advised of his rights to seek legal counsel. On 6 July 1982, the applicant consulted with counsel. He was advised of his rights and waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and submitted a statement in his own behalf.

11. On 12 July 1982, the intended discharge action was returned for resubmission under the provisions of AR 635-200, paragraph 5-31 (Expeditious Discharge Program). The applicant was notified of the new proposal for his separation, under the provision of chapter 5, AR 635-200. He elected not to make a statement in his own behalf. The applicant acknowledged that he understood if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life, that there was no automatic upgrading nor review by any government agency of the characterization of service, which is under honorable conditions.

12. On 13 July 1982, the applicant signed a statement that he elected not to undergo a separation physical examination in conjunction with his discharge action.

13. The separation action was resubmitted, on 13 July 1982, under the provisions of AR 635-200, paragraph 5-13. The reason cited, in the recommendation by the commander, was the applicant's failure to meet the minimum standards of performance and conduct necessary for retention. Despite the counseling of the brigade cadre and the professional staff, the applicant had failed to develop into a satisfactory soldier. His performance while he had been at the retraining brigade had been unsatisfactory, at best. The applicant had failed to demonstrate the necessary potential for further service and the cadre and the commander had reached the conclusion that the probability of the applicant's reaching honorable ETS (expiration of his service commitment) was very poor.

14. The applicant's chain of command recommended approval of the separation action and further recommended that he be given a discharge under honorable conditions.

15. On 21 July 1982, the separation authority, a colonel, approved the applicant's separation and directed that he be released from active duty, transferred to the IRR (Individual Ready Reserve), and that his service be characterized as under honorable conditions (General).

16. The applicant was released from active duty under honorable conditions (General), on 23 July 1982, in the rank and pay grade, Private, E-1, under the provisions of AR 635-200, chapter 5-31, for failure to maintain acceptable standards for retention. He had 1 year, 1 month, and 21 days of creditable service with 29 days lost due to confinement.

17. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

18. AR 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel. Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, or released from active duty for the convenience of the Government with their service characterized as honorable or under honorable conditions, as appropriate.

19. Paragraph 5-31 (Expeditious Discharge Program) provided that members who had demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards required of them in the Army could be separated under this paragraph. Members would be released from active duty and transferred to the IRR (Individual Ready Reserve) to complete their service obligation, except those whom the separation authority determined, for some specific reason, that they had no potential for useful service under conditions of full mobilization. This program applied to all Active Army personnel who had completed at least 6 months, but no more than 36 months of continuous active duty on their first enlistment in the Army, at the time the member's immediate commander formally recommended their separation under this paragraph.

DISCUSSION AND CONCLUSIONS:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.

3. Initially, the applicant had been recommended for separation under the provisions of AR 635-200, paragraph 14-33(1); however, this recommendation was withdrawn and the command opted to seek his release from active duty under the more equitable provisions of AR 635-200, paragraph 5-31.

4. On the date the applicant's commander submitted the recommendation for his release from active duty, he had completed more than 6 months but less than 36 months continuous active service.

5. The applicant, in his relatively short period of Army service, had been convicted by one special court-martial, which resulted in his being confined for 29 days, and subjected to nonjudicial punishment, under Article 15 of the UCMJ, for participating in a breach of peace by striking another person in the face with a closed fist.

6. The applicant had failed to meet the minimum standards of performance and conduct necessary for retention. Despite the counseling of the brigade cadre and the professional staff, the applicant had failed to develop into a satisfactory soldier. The applicant's performance while he was at the retraining brigade was judged to be unsatisfactory, at best.

7. The applicant had failed to demonstrate the necessary potential for further service and the cadre and the commander had concluded that the probability of the applicant's reaching the expiration of his term of service honorably was very poor.

8. In view of the circumstances and the evidence of record, in this case, the applicant is not entitled to a change or removal of the reason for separation that he now seeks.

9. Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 July 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 July 1985. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

rjo _____ le _____ jhl_____ DENY APPLICATION

1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  ____Joann H. Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090062
SUFFIX
RECON
DATE BOARDED	20040212
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19820723
DISCHARGE AUTHORITY	AR 635-200, Paragraph 5-31h(1)
DISCHARGE REASON	EDP Failure to Maintain Acceptable Standards
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 191	110.0200
3.
4.
5.
6.